DELHI DEVELOPMENT AUTHORITY vs MANGE RAM

THE Complainant had applied on 14.9.1996 for residential flat under SFS IX Scheme and was allotted Flat No. 185, Category II, Pkt. 1 & 2 in Sector 3, Dwarka, New Delhi vide allotment -cum demand letter No. F - 177(0488)97/SFS -IX/DW/ll/6992 dated 25.4.1997 to 30.4.1997 with direction to pay a sum of Rs. 7,50,171. Along with the application, the Complainant had deposited a sum of Rs. 50,000, which was deposited against the total price of the flat. The said amount of Rs. 7,50,171 was required to be paid within 60 days from the date of issue of the letter and if the payment was not made within 120 days from the date of issue of demand letter, the allotment would stand cancelled automatically. According to the Complainant, he visited the site on 13.5.1997 and found that basic necessities like light/electricity, water, etc. were not provided on the spot and the surroundings were not habitable. The Complainant sent letters to Delhi Development Authority (for short DDA'') on the said aspect but no reply was received. DDA vide letter dated 17.11.1997 cancelled the allotment. The Complainant pursued the matter with the authorities and also with Hon''ble Lt. Governor, Delhi after which, restoration of allotment was issued to the Complainant on 26.4.1999 i.e. to say after filing of the complaint. The Complainant failed to make payment of the cost of the flat and the interest. The opposite party again issued letter dated 28.10.1999 to the Complainant for making payment but the Complainant did not make the payment nor furnished documents, as required in the demand letter and as such, the allotment of flat was cancelled.

THE State Commission vide impugned order dated 23.2.2007 directed the opposite party/DDA to allot a flat to the Complainant if the same was available by raising fresh demand including interest payable, as per rules but with effect from the date of restoration of the application dated 26.4.1999. The order further contemplated that if flat is not available then opposite party shall pay interest @ 12% on the sum of Rs. 50,000 deposited by the Complainant w.e.f. 14.9.1996 till the date of order with cost of Rs. 10,000. This order is the subject matter of appeal before us.

WE have heard Counsel appearing on both sides. Learned Counsel for the opposite party/petitioner submitted before us that even though basic amenities were available, the Complainant did not pay as a result of which, the initial allotment was cancelled. However, on repeated representations made by the Complainant, the allotment was restored but even then the Complainant did not pay on account of which, the allotment was liable to be cancelled. It was pointed out by the learned Counsel for the petitioner that though the allotment was made to one Mange Ram, but yet the matter is being pursued by one Virender Kumar Jutshi, who claims to be power of attorney of Mange Ram and that no affidavit evidence has been filed by the said Mange Ram, the original allottee. It was further contended that since the Complainant did not pay even after the restoration of allotment letter dated 26.4.1999 and subsequent reminders sent to him, the Complainant is not entitled to any allotment. It was also urged that since the Complainant himself is responsible for non -payment even after restoration, the State Commission was not justified in ordering interest on deposit of Rs. 50,000 as also costs of the proceedings and that the only entitlement of the Complainant in the facts and circumstances of the case would be to receive the deposited amount after deduction in terms of the allotment -cum -demand letter dated 25.4.1997 to 30.4.1997.

LEARNED Counsel appearing on behalf of the respondent submitted before us that no water or electricity was available on account of which, the Complainant was not bound to deposit the price of the flat, as per allotment -cum -demand letter. It was further submitted by him that the second allotment letter was not received by the Complainant and that DJB water was not available in Dwaraka w.e.f. 1.1.1998 and the electricity was available in the said pocket only from 3.4.1999. In support of this argument, he submitted before us a letter from DDA dated 13.9.2006. He also placed before us another letter from DDA dated 3.7.2001, stating that Flat No. 185 (GF), Pkt. 1 and 2, Sector 3, Dwaraka is lying vacant at present. These letters were not filed at any stage of the proceedings nor copies of the same were furnished in advance to the Counsel of the petitioner. Accordingly, learned Counsel for the opposite party stated that without verifying the genuineness of the said letters, it would not be possible for her to make any submission in this respect.

THE original allottee of the flat in question is one Mange Ram and the matter is being pursued throughout by one Virender Kumar Jutshi, who claims to be attorney of the said Mange Ram. The complaint before the State Commission was not even signed by Mange Ram, but it was signed by the said Virender Kumar Jutshi. It is pertinent to note that evidence by way of affidavit was also not filed by Mange Ram but the affidavit was filed by Virender Kumar Jutshi. Evidence by way of affidavit is required to be filed by the consumer - Mange Ram who had approached the State Commission, inasmuch as what transpired till the filing of the complaint was within the personal knowledge of Mange Ram and power of attorney had filed affidavit evidence only on hearsay knowledge of facts from Mange Ram. The affidavit evidence of Power of Attorney is merely hearsay evidence and best evidence of complainant has been withheld. This is fatal to the case of the complainant. The admitted signatures of Mange Ram on application dated 14.9.1996, do not prima facie tally with the signatures on other papers found in Vol.II of papers filed before this Commission. It appears that the matter is being prosecuted by proxy who wants to grab the flat.

THE case of the Complainant is that the payment was not made pursuant to the first allotment letter because basic amenities like water and electricity were not available. The attorney of the complainant had filed the complaint on 28.9.1998 in which damages of Rs. 5,00,000 were claimed from the opposite party for harassment and mental torture, besides 24% interest on the deposited amount of Rs. 50,000 as also allotment of flat on the same cost i.e. Rs. 7,50,171. The opposite party had restored the allotment after the filing of the complaint but the complainant did not pay the price of the flat in spite of reminders issued by the opposite party. Though the power of attorney of complainant has denied the receipt of the said letters, we find it difficult to accept the said plea in the absence of affidavit by the Complainant himself that is to say, Mange Ram. It appears that the attorney of the Complainant did not want the payment to be made so that the claim for damages to the tune of Rs. 5,00,000 could be pursued.

IT may be mentioned here that in the reply filed by the opposite party prior to October, 2000, since the affidavit in rejoinder was filed by the Complainant on January 9, 2001 though the same was prepared in October, 2000, issue of restoration of allotment letter was specifically mentioned in paras 13 and 14; but at no time the Complainant came forward before the State Commission that the Complainant was ready to make the payment in terms of restoration of allotment letter dated 26.4.1999 and this was obviously done with dishonest intention in order to pursue the claim of damages of Rs. 5,00,000. The Complainant has thus neither acted diligently nor fairly on account of which the Complainant is disentitled from getting substantive relief.

ADMITTEDLY , basic amenities like water and electricity were available when the allotment was restored in the year 1999 and there was absolutely no justification for not making the payment. The Complainant has to blame himself for the state of affairs in which he has landed. In these circumstances, the conditional order of allotment in the event of availability of flat was not justified in the facts and circumstances of the case when primarily the Complainant was responsible for not paying the price of the flat. In our opinion, the State Commission was not justified in ordering 12% interest on the deposited amount of Rs. 50,000, as also costs of Rs. 10,000 and the Complainant would be only entitled to receive refund of the deposited amount in terms of the allotment -cum -demand letter dated 25.4.1997 to 30.4.1997. The appeal is accordingly allowed in terms of aforesaid directions with no order as to costs. Appeal allowed.