DELHI DEVELOPMENT AUTHORITY vs P.K.THAKUR

MR. P.K. Thakur, hereinafter referred to as the complainant, was allotted MIG flat in Rohini for Rs. 1,55,600/- in Feb., 90. In view of the initial deposit made at the time of registration, which was to be adjusted, the complainant was asked to pay balance of Rs. 1,46,860.43 upto 22.4.90. The amount was deposited by the complainant on 17.4.90. The complainant was also required to submit certain documents by a prescribed date. The documents were, infact, submitted after that date on 26.6.90. Because of late submission of the documents the allotment was cancelled and the complainant was called upon to deposit Rs. 2,366.05 as cancellation charges and Rs. 2,500/- as restoration charges. The complainant paid both the cancellation and restoration charges on 4.1.91. Further case of the complainant was that on 21.3.91 he asked the opposite party to either allot the flat in Rohini at the original price or refund the amount to him. Having failed to get either of the above reliefs, he filed a complaint before District Forum-II on 3.8.92. The plea of the complainant was that he intimated about change of his mailing address to the opposite party but the letter asking him to furnish various documents was sent at his old address and the same was returned as undelivered by the postal authorities. On discovering the mistake the opposite party sent another letter at the new address which was received by him in March, 90. His further plea was that he had complied with all the formalities within the period of three months allowed for the purpose.

THE complaint was contested. On a consideration of the matter the District Forum did not accept the plea of the complainant that he had intimated change in address to the opposite party. It was further held that cancellation of the allotment was in accordance with the terms and conditions of allotment and the complainant was not entitled to restoration of allotment of flat at Rohini. It was further observed that it was not clear whether the complainant was interested in allotment of another flat in another area namely Jahangir Puri. It was, therefore, directed that if the complainant was interested in retaining the allotment of the flat in Jahangir Puri, he shall inform the opposite party accordingly. In such a case, the opposite party was directed to allot the flat at the disposal price fixed for that flat at the time of allotment. If the complainant decided not to avail of the allotment at Jahangir Puri, the amount paid by him towards the cost of the flat at Rohini was to be refunded alongwith the interest @ 15% p.a. from 17.4.90 when he had originally paid the amount. In the facts and circumstances of the case it was not considered appropriate to allow any amount towards costs and damages. Aggrieved by the order, the opposite party, DDA has preferred this appeal. We have heard learned Counsel for both the parties. Mr. Naresh Thanai, learned Counsel for the appellant has stated that on 18.2.91 a draw of lots regarding allotment of flats in Jahangir Puri took place. The complainant was successful in that draw and, accordingly, letter of allocation was sent to him dated 5/7.9.91. He further stated that the complainant failed to inform the DDA, that he was not interested in having a flat at Jahangir Puri. He actually filed the prescribed affidavit as well as undertaking in writing which, by necessary implication showed that he accepted the allotment of the flat in Jahangir Puri. In addition to affidavit and undertaking referred to above, the complainant also accepted, under his own signatures, the letter of possession dated 31.3.92. He further pointed out that it was sometime later that the complainant seems to have changed his mind and started raising claim for restoration of the allotment in respect of the flat at Rohini. In these circumstances it was submitted that the complainant was not entitled to any interest. The contention of Mr. Vipin K. Dwivedi, on the other hand, is that in addition to cancellation charges the complainant had deposited Rs. 2,500/- as restoration charges which implied that he was interested in the allotment of the flat at Rohini. Instead of dealing with the case for allotment of flat at Rohini the opposite party had dealt with the case for allotment at Jahangir Puri without obtaining consent of the complainant. He pointed out that adjustment of Rs. 1,18,000/- from out of the money already deposited and further adjustment of about seven instalments had been unilaterally made by the opposite party. He further submitted that in the complaint filed before the District Forum in August, 1992 the category cal case of the complainant was that either he may be restored the allotment of the flat in Rohini or refunded the whole amount together with interest.

In reply, Mr. Thanai pointed out that even in the complaint the case pleaded was that the opposite party was not able to deliver possession of the flat in Jahangir Puri and it was, therefore, prayed that the amount be refunded together with interest. Mr. Thanai also submitted that if registration remains in tact, in ordinary course the registrants are considered for subsequent draws and no consent is required to be taken. He further pointed out that it was only under Self Financing Scheme that fresh options are asked for and given but not in the case of flats other than those covered under Self Financing Scheme.

WE have carefully considered the respective submissions. WE are clearly of the view that the action of the complainant in submitting affidavit and undertaking dated 18.11.91 and receiving letter of possession dated 31.3.92 clearly showed that during the material period since allocation of flat in Jahangir Puri the complainant was well aware that he has been successful in draw of lots and had been allocated a certain flat on certain terms and conditions including the disposal price and mode of payment by 20 instalments in Jahangir Puri. It is not disputed before us that at the time when possession letter was issued on 31.3.92 the flat did not have basic amenities of water and electricity. It was on 13.10.95 that the complainant made up his mind to drop the idea of availing of the allotment at Jahangir Puri. Till then he was taking steps to take possession of the flat at Jahangir Puri. In our view, therefore, there was no case for the grant of interest prior to 13.10.95. WE would, therefore, modify the order of the District Forum and instead of allowing interest from 17.4.90 we hold that the complainant is entitled to interest @ 18% p.a. instead of 15% p.a., allowed by the District Forum from 15.10.95 granting two days for his request to be dealt with by the opposite party. Towards the conclusion of arguments Mr. Dwivedi brought to our notice that the appeal was barred by limitation. The order under appeal is dated 6.1.95. Certified copy was received by the opposite party on 30.1.95 and the present appeal was preferred on 14.8.95 alongwith application for condonation of delay. The main ground for condonation is that various departments of the DDA were involved and in the peculiar facts and circumstances of the case, there was delay in taking the decision to file the appeal. Mr. Thanai placed reliance on Union of India v. R.P. Builders, 57 (1995) DLT 337=AIR 1995 Delhi 52, in which a Division Bench of Delhi High Court had, after reviewing the case law, laid-down that in so far as Government departments were concerned there were certain special and peculiar features which had to be taken note of while considering applications for condoning the delay. On behalf of the respondent, on the other hand, reliance was placed on DDA v. O.P. Gaba in which the National Commission held that inter office consultation for prolonged period in DDA was not a sufficient cause for condonation of delay. In considering the question of condonation of delay amongst other things we take note of the fact that considerable amount of money is involved which would have to be paid from the public exchequer. From the facts discussed in the earlier part of this order it is clear that the complainant took active steps to go ahead with the alternative allotment made in Jahangir Puri and he, not only furnished various documents like affidavit and undertaking, he also received the letter of possession under his own signatures. The complainant, in our view, is totally unjustified in claiming the interest for the period during which he could not make-up his mind to give up allotment offered in Jahangir Puri. Admittedly, the earliest occasion that he made-up his mind by writing letter dated 30.10.95. In view of the peculiar facts and circumstances of the case and the public interest involved, we condone the delay in filing the appeal. In the nature of things the question of condonation of delay depends on the facts and circumstances of each case. Precedents either condoning the delay or declining to condone the delay do not clinch the matter.

AS noted in our order dated 3.4.96 the DDA has already paid the principal amount. The remaining matter relates only to the payment of interest. For the foregoing reasons we partly allow the appeal, set aside the order of the District Forum-II and allow interest @ 18% p.a. on the principal amount w.e.f. 15.10.95 till the date of payment. In the facts of the case, the parties are left to bear their own costs throughout. A copy of this order be communicated to both the parties as well as District Forum-II. Appeal partly allowed.