DELHI DEVELOPMENT AUTHORITY vs MUKESH KUMAR JAIN

THIS revision petition has been filed by Delhi Development Authority (hereinafter referred to as the ''Petitioner'') against the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ''State Commission'') in Appeal No.A -443/2003 decided in favour of Mukesh Kumar Jain, Respondent herein who was the original complainant before the District Forum.

THE facts of the case are that Respondent was declared successful in a draw of lots held by the Petitioner in 1991 in respect of 90 Sq.Mtr. plots in Rohini to which he had applied in response to a Scheme advertised by the Petitioner. However, allotment of the plots was stayed as per an order of the Delhi High Court. Respondent came to know that a 60 Sq.Mtr. plot was allotted to him in 1995 when a property dealer contacted him for sale of this plot. Respondent, thereafter, wrote several letters to the Petitioner and also personally met the officials therein but he did not get any satisfactory response. Respondent, therefore, filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioner be directed to issue him the allotment letter and hand over the possession of the plot allotted to him at the price prevailing in 1991 i.e. at the time of successful draw of the plot in his favour. Petitioner in response, while confirming that the Respondent was declared successful in the draw of lots in 1991 stated that on vacation of the stay order of the High Court, a demand -cum -allotment letter was sent to the Respondent on 14.10.1993 by registered post but since Respondent did not make the requisite payment and deposit the required documents by the stipulated date, the allotment was cancelled and thereafter the plot was allotted to the next eligible person in the list. THE District Forum after hearing both parties allowed the complaint by observing that even if the Petitioner may have filed proof of dispatch of the allotment letter but since proof of delivery has not been filed and Respondent would not have approached the Petitioner several times for issue of allotment letter if indeed the letter had been received by him, directed that the Petitioner should restore the allotment of the plot to the Respondent at the price indicated in the allotment letter dated 16.10.1993 and on the same terms and conditions contained therein. If, however, the same plot is not available, some other plot of about the same size be allotted to Respondent. It was directed that the Petitioner comply with the order within one month of its receipt. Aggrieved by this order, Petitioner filed an appeal before the State Commission which rejected the same by observing as under: "We have held in case after case that wherever substantial right of a person, like the one in question, that allotment of the plot or flat is involved, it is obligatory upon the service provider to ensure that the service of demand -cum -allotment letter is effected personally upon the consumer. Merely by sending allotment -cum -demand letter through registered post does not fulfill the obligation. Unless and until the allottee receives the communication personally he is not supposed to know as to the allotment as well as demand made by the DDA. Such obligation all the more becomes important when there is a clause that the allotment shall stand cancelled automatically in case of non -payment of the demand. Unless and until registered documents are enclosed with acknowledgment due receipts and the acknowledgment is received back with the purported signatures of the consumer which should be invariably compared with the signatures an application forms it is not open to the DDA to cancel the allotment. Automatic cancellation without personal service upon the allotment abridges and violates the most valuable right of the allottee."

THE State Commission thus concluded that the Petitioner had failed to prove the receipt of the demand -cum -allotment letter by the Respondent and therefore, cancellation of allotment was wrong and illegal. It, however, modified the order of the District Forum by giving the Petitioner liberty to put the name of the Respondent in the next draw of lots or allot an alternative plot at the price indicated in the letter dated 16.10.1993 on the same terms and conditions. Hence, the present revision petition.

COUNSEL for both parties made oral submissions. COUNSEL for Petitioner stated that the learned Fora below erred in concluding that there was any deficiency in service on the part of the Petitioner because as soon as the court case was over, Petitioner dispatched the allotment letter by registered post to the Respondent and a written receipt of Petitioner having sent it was also filed in evidence before the Fora below. This is as per normal procedure adopted by the Petitioner and is a reliable method of sending communications. The State Commission''s observation that the communication should have been personally served to the allottee is not practically feasible for an agency like the Petitioner which deals with very large number of such cases. Further, it would be difficult to comply with the orders of the Fora below since it is not possible to allot an alternative plot to the Respondent due to non -availability of the same. Even during the next draw of lots, there may be difficulties because as per the practice of Petitioner/Authority, those who have not been allotted plots under the earlier similar schemes are again considered for allotment in the draw of lots in subsequent schemes. It was also contended that for submitting application for registration, mere deposit of Rs.5,000/ - as registration money does not make the Respondent a ''consumer'' in terms of Section 2(d) of the Consumer Protection Act, 1986 since no specific services have been rendered in this case.

COUNSEL for Respondent on the other hand stated that the Fora below being courts of fact on the basis of evidence filed before them had believed and accepted the contention of Respondent that he had not received any communication from the Petitioner. Regarding the demand -cum -allotment letter, had Respondent received any such letter, he would not have been frequenting the Petitioner''s office to find out the factual position. COUNSEL for Respondent therefore, urged that the order of the State Commission directing the Petitioner to either allot him an alternative plot on the same terms and conditions as contained in the letter dated 16.10.1993 or his name be placed in the next draw of lots be upheld and necessary relief be given to the Respondent. We have heard learned COUNSEL for both parties and have gone through the evidence on record. The fact that the Respondent had participated in the Petitioner''s Scheme for allotment of plots through a draw of lots and having deposited of Rs.5,000/ - as registration fees are not in dispute. It is also an admitted fact that due to a court case, the decision on the draw of lots was delayed by almost three years i.e. till 1993. Petitioner''s contention that it did not seem probable that the Respondent had not received the demand -cum -allotment letter sent in 1993 because it was sent by registered post was considered in its totality by the Fora below who are courts of fact and they have concluded that this by itself was not adequate evidence to prove that the letter was received by the Respondent. This is further fortified by the fact that had the Respondent indeed received the demand -cum -allotment letter, no plausible reason or evidence has been produced by Petitioner to explain why he did not respond to it and on coming to know regarding his allotment, his visiting and writing to the Petitioner/Authority to allot the plot to him. We thus see no reason to disagree with the Fora below in respect of this conclusion. However, we agree with the COUNSEL for Petitioner that the direction of the State Commission to the Petitioner that in future delivery of all such letters should be effected personally in each such case is not reasonable or practical and the same is therefore, set aside.

REGARDING the contention of the Counsel for Petitioner that the Respondent is not a consumer since he had only paid the registration money and no service as such were offered to him is also not acceptable because once the Petitioner had issued a demand -cum -allotment letter for allotment of a plot to the Respondent, Respondent became a consumer in terms Section 2(d) of the Consumer Protection Act, 1986. We, therefore, uphold the operative part of the order of the State Commission directing the Petitioner to either allot an alternative plot to him at the price indicated in the letter dated 16.10.1993 on the same terms and conditions or put his name in the next draw of lots. The revision petition stands disposed of on the above terms.