DELHI DEVELOPMENT AUTHORITY vs MAHAVIR SINGH

BRIEF facts giving rise to this appeal are that Mahavir Singh, complainant for short, registered himself under 1979 HUDCO pattern scheme for L.I.G. category flat to be constructed by DDA. He was successful in the draw of lots dated 31.3.1982 and was allotted flat No. 68-A, PocketA2, Lawrence Road Delhi in April, 1983. He deposited Rs. 17.000/- (this amount is Rs. 13.600/- according to DDA) demanded by DDA. Letter of possession was issued on 2.9.1983. When the complainant went to receive possession on 21.9.1983, it was found that possession had already been delivered to one Swaran Singh. The DDA appears to have cancelled the allotment in favour of Swaran Singh who filed a Civil Suit which was ultimately decreed in his favour in July, 1991. The complainant kept on pressing the DDA for allotment of an alternative flat. On 16.11.1983 DDA wrote to the complainant that he was being allotted flat No. 98A in Pocket A2, Lawrence Road on the original terms and condi- tions. In the letter it was further stated that formal Allotment-cum-Demand Letter would be issued shortly but the complainant wrote on 24.11.1983 that the offer of alternative flat was not acceptable to him for the reason that while the flat originally allotted, namely 68-A, had an open courtyard, there was no such open courtyard in the flat offered as an alternative, namely 98-A. He reiterated his request to allot the flat which was originally allotted to him or any other similar flat with an open courtyard. He also requested that the complainant may be considered for allotment of similar flat in South Delhi (Kalkaji etc.). At one stage, the complainant requested that he may be allotted flat No. 32-A, Pocket A-2, Lawrence Road. It was, however, found that the same had already been allotted to one Mahinder Kumar Sharma under the physically Handicapped category and possession had already been delivered. The case remained under process in a search for a similar flat in South Delhi but no such flat was available. It was in these circumstances that the complainant filed a complaint before the District Forum-II claiming allotment of flat similar to the originally allotted flat alongwith compensation amounting to Rs. 1,00,000/-. The plea of DDA, opposite party before the District Forum was that the complainant was not a ''consumer''. It was further stated that on discovering the fact that the flat allotted to the complainant had been erroneously given to one Swaran Singh, the complainant was offered an alternative flat in the same locality on the original terms in November, 1983 itself. Ultimately Allotment Letter was not issued to the complainant as it was found that the complainant had failed to pay the amount due under the original allotment including interest for the period of delay.

ON a consideration of the matter. District Forum-II held that complainant was a consumer. It was further held that the opposite party failed to deliver the possession of the flat on account of gross negligence and that the flat had already been allotted to another person. The plea that the allotment letter of the alternative flat was not issued as the complainant failed to deposit monthly instalments alongwith interest was rejected as untenable on the ground that the complainant could not be expected to go on with instalments when possession of the flat allotted to him had not been delivered. The Forum concluded "We have already taken the view in several other cases that in cases resulting from delay in allotment on the ground that the flat had already been allotted to someone else, the allottee is unable to get the alternative flat at the same price at which it was allotted to him originally or other persons of the same draw. The case of the complainant is similar to those cases. He was entitled to get an alternative flat at the same price and there was no question of any instalment having fallen due as possession of the flat originally allotted to him had not been given to him and the alternative flat had also not been allotted to him". The complaint was allowed and DDA directed to deliver possession of the flat originally allotted to the complainant and in the event of its non-availablity to give the allottee an alternative flat in the same locality and at the same price at which the flat was originally allotted and also pay him a compensation of Rs. 5.000/- within a period of 30 days from the date of the order. Aggrieved by the order DDA has preferred this appeal.

We have heard Mr. S.C. Varshney, Advocate for the appellant and Mr. Vinod Kumar, Advocate for the respondent and have carefully gone through the records. Flat No. 98-A PocketA2, Lawrence Road, which was offered as an alternative flat is still available. In view of the scarcity of similar flats either in that locality or some other localities for which the complainant wished to be considered, and in view of the fact that the complainant is about to retire and would urgently need a flat to reside, the complainant respondent accepts the allotment. The only controversy which survives is whether the DDA is entitled to claim interest on the delay in payment of the instalments and whether the complainant is bound to deposit the amount with DDA on account of the instalments which became due in the meanwhile. Learned Counsel for both the parties have, therefore, mainly confined to the above issues.

BEFORE dealing with the aforementioned points, it is necessary to deal with the question of limitation. The order of District Forum is dated 28.3.1994. The admitted case of DDA is that certified copy of the order was received on 19.4.1994. The appeal was filed some times in September, 1994 (unfortunately the exact date of filing is not available on the record). Alongwith the appeal, the appellant has filed an application for condonation of delay. The reason stated is that the office of DDA is a very big office and there are about 20,000 cases to be dealt with. It has further been stated that the relevant file could not be located and delay was caused due to misplacement of the file and as soon as the file was traced, the case was sent to the Counsel to prepare and file the appeal. The application is sought to be supported by affidavit of V.K. Singhal Director (H-II) which is in general terms to the effect that the contents of the application were true and correct as per official record, etc. In the reply, opposing the reply, it has been stated that no sufficient ground had been made out. It was denied that file had been lost and the same was traced out later on. Mr. S.C. Varshney, relies on Union of India v. R.P. Builders, 1994 Rajdhani Law Reporter 460 (DB). After referring to relevant decisions of the Supreme Court, it was stated in para 9 of the aforesaid decision as follows : "9. The above decisions of the Supreme Court clearly lay down that while the State cannot be treated differently from any other litigant, the Court is "bound" to take into consideration the following factors- (i) redtapism in Government; (ii) delays in correspondence; (iii) habitual indifference of Government officials or Government Pleaders as distinct from the usual diligence of ordinary litigants or Lawyers for private parties; (iv) collusion or negligence by Government officials or Government Pleaders or fraud; (v) damage to public interest or to public funds or interests of the State; (vi) institutional or bureaucratic proce- dures as well as delays arising thereon, and (vii) need to render substantial justice on merits. It is not as if, fraud on the part of the Government officials or Pleaders has necessarily to be proved by the Government in every case".

The factors enumerated in the above authority are not attracted to the facts of the present case. No attempt has been made to make a precise statement as to when the file was lost, when was it found out, what action was taken in this behalf nor has the affidavit of the official who was supposed to have custody of the file been filed. Instead a very vague and general allegation has been made that the file was lost and as soon as it was found out, the appeal was prepared and filed. After careful consideration we do not find that the appellant has made out any sufficient cause to justify the condonation of delay. The appeal must, therefore, fail on this ground.

ASSUMING for the sake of argument that the appeal had been filed in time or delay had been condoned, we find that no case has been made out by DDA on merits to justify interference with the order of the District Forum. Admitted case is that the flat originally allotted as a result of draw could not be given to the complainant as the same had already been given to another person. This occurred on account of negligence in issuing double allotment or delivering possession of a flat which according to DDA had not even been allotted to that third person. It is not disputed that while the flat originally allotted had an open courtyard the alternative flat offered to the complainant did not have such a courtyard. The complainant could not be compelled to accept the offer. It is unfortunate that no other flat either in that locality or in any of the areas for which the complainant had opted was available. The complainant could not be expected to go on paying instalments for a flat of which possession was never delivered to him. The DDA is, therefore, not justified in asking for interest on the overdue instalments. The matter can be viewed from another angle. The complainant has been deprived of the possession of the flat all these years and he will be justified in claiming compensation on that ac count which would more than offset counter claim on interest made by DDA. For these reasons, we dismiss the appeal. As the complainant, respondent herein has now accepted the allotment of flat No. 98-A, Pocket A2, Lawrence Road, the same shall be allotted to him without any further delay. The instalments payable shall be rescheduled. Previous interest shall not be included. The amount of compensation awarded by the District Forum shall be paid and the order with slight modification stated above shall be complied with without delay and, in any case within four weeks of the receipt of a copy of the order by the appellant. The parties will bear their own costs in the appeal. A copy of the order be conveyed to both the parties. Appeal dismissed.